Such a party must demonstrate both (a) the former existence and the present unavailability of the missing document, and (b) the contents of the missing document." Connecticut Bank & Trust Co. v. Wilcox , 201 Conn. 570, 573, 518 A.2d 928 (1986) ; see also Host America Corp. v. Ramsey , 107 Conn. App. 849, 855, 947 A.2d 957, cert. denied, 289 Conn. 904, 957 A.2d 870 (2008). Whether a party sufficiently has demonstrated former existence and present unavailability is a question of fact.
Connecticut law distinguishes between the substantive requirement that an agreement be in writing and the evidentiary requirements for proving the existence of the writing under the Best Evidence Rule. Even though the Statute of Frauds requires certain agreements to be in writing to be enforceable, the Connecticut Supreme Court has held that the existence and terms of a lost written agreement may be proven by secondary evidence. Connecticut Bank Trust Co. v. Wilcox, 201 Conn. 570, 574, 518 A.2d 928, 931 (1986) ("the loss or destruction of a memorandum does not deprive it of effect under the Statute of Frauds," where the writing can be proven by secondary evidence) (citing Restatement (Second) of Contracts § 137). As one leading commentator has explained:
This argument is belied by the fact that in our case law there is no requirement of contemporaneity between a continuing guaranty and the obligations secured thereby. Connecticut Bank Trust Co. v. Wilcox, 201 Conn. 570, 575, 518 A.2d 928 (1986). The defendant's second alternative claim, namely, that he was released from any obligation because the April 4, 1984 and February 6, 1985 notes were marked "paid" by the plaintiff, fails in light of the express language of the party.
When secondary evidence is produced to establish the contest of a lost document "a party must demonstrate both (a) the former existence and the present unavailability of the missing document, and (b) the contents of the missing document." Connecticut Bank Trust Co. v. Wilcox, 201 Conn. 570, 573, CT Page 10426 518 A.2d 928 (1986). "In any dispute concerning the existence, less or terms of a missing document, it is appropriate for the parties to bring to the court's attention whatever evidence, direct or circumstantial, written or oral, the trial court may find relevant and persuasive."
Such a party must demonstrate both (a) the former existence and the present unavailability of the missing document, and (b) the contents of the missing document." Williams, 547 So.2d at 57 (quoting Connecticut Bank and Trust Co. v. Wilcox, 201 Conn. 570, 518 A.2d 928, 930 (1986)). We hold that the uncontradicted Thames affidavit shows by a preponderance of the evidence: (1) the existence of an agreement to arbitrate between the parties, albeit through circumstantial evidence that Appellees purchased a car from Thames, every car purchaser is made to sign an arbitration agreement, and that Appellees could not have purchased a car without executing an arbitration agreement; (2) the present unavailability of the arbitration agreement; and (3) the contents of the missing arbitration agreement.
In the contract's absence, she must show (i) "the former existence and present unavailability of the missing [contract]," and (ii) "the contents of the missing [contract]." Conn. Bank & Trust Co. v. Wilcox, 201 Conn. 570, 573 (1986)(internal quotation marks and citations omitted). She has done both. (ECF No. 89-1 at 35)(Ms.
conduct a comprehensive study of the future role and procedures of the National Security Council ("NSC") . . . and provide recommendations to the President based upon its analysis of the manner in which the foreign and national security policies established by the President have been implemented by the NSC staff. Exec. Order No. 12757, 51 Fed.Reg. 43718 (1986).
The defendants' argument cannot be reconciled with the holdings of these precedents. We have not heretofore distinguished between documentary and testimonial evidence in defining the role of appellate tribunals in reviewing findings of fact; see, e.g., Connecticut Bank Trust Co. v. Wilcox, 201 Conn. 570, 576, 518 A.2d 928 (1986); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); DiLieto v. Better Homes Insulation Co., 16 Conn. App. 100, 104, 546 A.2d 957 (1988); and we are not prepared to introduce such a distinction into administrative proceedings. We note, furthermore, that the record in this case was not wholly documentary.
Such a party must demonstrate both (a) the former existence and the present unavailability of the missing document, and (b) the contents of the missing document.Connecticut Bank and Trust Co. v. Wilcox, 201 Conn. 570, 518 A.2d 928, 930 (1986). See also, Keshishian v. Washington Square, 414 A.2d 834, 840 (D.C. 1980); Capitol Bank and Trust Co. v. Richman, 19 Mass. App. 515, 475 N.E.2d 1236, 1240 (1985); Washington v. Claassen, 218 Kan. 577, 545 P.2d 387, 390 (1976); Bradley v. Nall, 505 So.2d 1062, 1064 (Ala. 1987).
Such a party must demonstrate both (a) the former existence and the present unavailability of the missing document, and (b) the contents of the missing document." Connecticut Bank & Trust Co. v. Wilcox , 201 Conn. 570, 573, 518 A.2d 928 (1986). Our careful review of the record reveals that the court did not err in finding that the defendant failed to prove